H2-A and H2-B Guestworker Visas

February 23, 2018 9:23 am
by David Jakeman

For better or worse, the United States has always depended on bringing in good, reliable workers to keep its economy humming. The country has different visa programs for different kinds of workers. Most well known are H-1B visas for high-tech workers, but the US economy depends heavily on H-2A and H-2B visas for low-tech, seasonable labor.

Differences between H-2A and H-2B Visas

H-2A and H-2B visas differ in the types of work they cover. The H-2A visas are intended for agriculture, and there is no numerical cap to how many guest workers can be brought in each year. The H-2B visas are for other types of seasonal labor, whether the demand is one time, peak load, seasonal, or intermittent. There is a cap of 66,000 H-2B visas per year.1 Industries who are heavy users of the B visas include seafood processors, forestry, landscaping, hospitality (hotels), and amusement parks.2

Similarities between H-2A and H-2B Visas

The H-2A and H-2B visas share a number of similarities: the work is seasonal, does not require advanced education, and the visas do not provide for a path to permanent residency. An employer who wants to use these visas must obtain temporary labor certification by proving to the Department of Labor that there are not enough US workers who are willing and able to do the job at the time and location needed. Employers must also prove that bringing in foreign labor will not negatively affect the wages and working conditions of US workers in similar jobs.

Challenges with Guest Worker Programs

Since it is the employer, not the foreign worker, who applies for labor certification, the employee is unable to switch jobs, leaving them at the mercy of their boss, even if working conditions are unsatisfactory. Workers’ rights groups have pointed out the vulnerability this imbalance in power creates for foreign laborers, but to date, no reforms have been enacted that address this important point. Countless cases have come to light documenting the miserable working conditions guest workers have suffered through. Indeed, many of them have suffered modern-day slavery.3

In addition to poor working conditions and an inability to leave an abusive employment situation, some guest workers face coercion through the “finder’s fees” they paid someone back home to help them get the job. These fees are illegal under US law, but enforcement of the law often lacks teeth. Sometimes, guest workers go thousands of dollars into debt in order to get the job in the US, and that means they have to keep working, no matter the conditions, to pay off the debt.

Guest worker programs are also controversial because of their effect on the US-born population. Employers are required to prove no one else wants the job, but it’s no secret that some employers abuse this requirement by making it difficult for anyone to actually apply for the jobs. They also don’t consider recruiting US workers from areas of high unemployment.4

The underlying issues of guest worker programs are poverty and anonymous labor. As long as these conditions persist, which is almost certain in a global economy, abuse will continue. However, immigration attorneys in Vancouver and elsewhere can help by educating their clients and communities.

1 – https://www.uscis.gov/working-united-states/temporary-workers/h-2b-temporary-non-agricultural-workers
2 – https://www.brookings.edu/research/immigration-facts-temporary-foreign-workers/
3 – https://www.farmworkerjustice.org/resources/reports
4 – https://cis.org/Dirty-Work-InSourcing-American-Jobs-H2B-Guestworkers

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